ORDER
The parties have filed cross motions for summary judgment contesting whether defendant breached any foreseeable duty.
1. Factual Background
The plaintiffs, Kevin and Paula Grant, checked into defendant’s family campground at approximately 8:00 p.m. on August 20, 2004. 1 They had camped at Wakeda Campground several times before and were aware the campground was “camping in the pines,” as defendant’s sign advertised. They proceeded to set up their “pop-up” camper. As they were preparing for bed at 9:00 p.m., a severe thunderstorm with extremely high winds moved through the campground without warning. The rain was a downpour with hail and the high winds snapped trees, tree tops and branches. A large portion of a pine tree crashed into plaintiffs’ camper, injuring plaintiffs and pinning them down.
Before leaving his Vermont home that day, Kevin Grant had listened to weather reports at 12:00 noon on both WYKR radio station out of Wells River, Vermont and Channel 3 television station from Burlington, Vermont. He did not hear any forecast for severe weather moving through Hampton Falls, New Hampshire for later that day. Plaintiffs did not listen to any more weather forecasts while they traveled, and the weather was good when they arrived at the campground.
Defendant operates a 200-acre campground with 408 campsites. It is owned and largely operated by one family, sisters Janet Hambleton and Karen Bork, and their brother Terry Savage. No one is specifically detailed to monitor the weather. There was no radio or television in the camp office on August 20, 2004; however, the family owners try to stay aware of the weather by listening to WOKQ, a local radio station out of Dover, New Hampshire, or watching WMUR, the local network station out of Manchester, New Hampshire, while driving to work and eating their meals, and by hearing from campers. None of them heard any National Weather Advisory Warning on August 20, 2004. All were as surprised by the storm as the plaintiffs. In fact, the weather had been nice all that day.
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There is no evidence that any employee of defendant listened to WKYX on August 20, 2004 or on any other date. There also is no evidence that defendant or any of its employees were made aware of these National Weather Service reports by any other means.
2. Standard of Review
Summary judgment is appropriate when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). “[A]n issue is ‘genuine’ if the evidence presented is such that a reasonable jury could resolve the issue in favor of the nonmoving party and a ‘material’ fact is one that might affect the outcome of the suit under governing law.”
Fajardo Shopping Ctr. v. Sun Alliance Ins. Co.,
On cross motions for summary judgment, as are presently before the court, the standard of review is applied to each motion separately.
See Am. Home Assur. Co. v. AGM Marine Contrs. Inc.,
3. Discussion
While there are some disputed facts in the case, the facts related above are those that are material to deciding these motions and are undisputed.
Plaintiff has alleged three theories for recovery:
a. Defendants failed to exercise due care in keeping its property in a reasonably safe and suitable condition so that its invitees and customers would not be exposed to unnecessary or unreasonable danger;
b. Defendants failed to exercise due care in following the weather reports and warning its invitees and customers of approaching weather which would create hazardous conditions within the campground and expose their invitees and customers to unnecessary or unreasonable danger; and
c. Defendants failed to exercise due care in failing to close their campground when severe weather would expose their invitees and customers to unnecessary and unreasonable danger.
Each of these theories asserts a duty of care that defendant allegedly owed to plaintiffs and breached. It is well settled that “owners and occupiers of land owe plaintiffs a duty of reasonable care under all the circumstances in the maintenance and operation of their property.”
Werne v. Executive Women’s Golf Ass’n,
a. Duty to Keep Property Safe
As part of a landowner’s general duty to keep his property reasonably safe, having a campground with campsites among the trees may well create a duty to
The evidence with respect to the condition of the trees was primarily provided in the deposition of Terry Savage, one of the owners of Wakeda Campground. He testified that he and his father are “always looking at the trees”, checking “to see what the condition of the trees are.” Pis.’ Cross Mot. Summ. J. (document no. 16), Exh. 9, Dep. of Terry M. Savage (document no. 16.10) at 29. They remove dead trees. See id. Another owner, Janet Hambleton, testified that until August 20, 2004, the camp “never had serious storm damage.” See Pl.’s Mem. in Supp. of Obj. to Def.’s Mot. for Summ. J. (document no. 15) 4 , Exh. 1, Dep. of Janet S. Hambleton (document no. 15.2) at 59. In fact, there is no evidence that the tree which injured plaintiffs was dead or unhealthy. Plaintiffs even provided hearsay evidence that an arborist inspected the downed trees after the event and said the trees were healthy.
The burden of proof is on the plaintiffs to show defendants breached their duty to keep the property safe. The only hint in support of this claim is that trees lost branches and/or tops and/or were toppled by the storm. The complaint does not set forth any facts in support of the alleged breach of the duty to keep the property safe; and the plaintiffs have proffered little in support of their summary judgment motion to substantiate the complaint’s allegation. “[A]n absence of evidence on a critical issue weighs against the party ... who would bear the burden of proof on that issue at trial.”
Perez v. Volvo Car Corp.,
Plaintiffs have not carried their burden of proof on this issue. Defendant is granted summary judgment on its duty to keep the property safe.
b. ‘Weather” Duties
Plaintiffs allege that defendant owed them a duty to monitor weather reports, warn them of approaching weather which could create hazardous conditions and close the campground when severe weather would expose them to unreasonable danger. The parties agree that none of defendant’s owners or employees knew of the weather advisories and, obviously therefore, did not provide any warning nor evacuate the campground. Since a landowner like defendant must exercise reasonable care for the protection of people invited onto its property as plaintiffs were, the question raised by these alleged duties is whether defendant’s duty to keep the premises reasonably safe includes a duty to monitor the weather and make corre
Essentially, plaintiffs claim that any campground with healthy trees in New Hampshire has a duty to constantly monitor weather forecasts and to warn campers and evacuate the campsites every time the weather service issues a severe thunderstorm warning for the area. No New Hampshire case or statute currently imposes such a duty. The facts are uncontradicted that defendant did not voluntarily undertake a policy of monitoring the weather and providing warnings. Had defendant done so, plaintiffs could have reasonably relied on defendant for weather information, because New Hampshire law recognizes that one “who voluntarily renders services for another ... [may be] held to a duty of reasonable care in acting.”
Walls,
Under the circumstances, it is necessary to “provide our ‘best guess’ as to open questions of state law,” although the court should “tread lightly in offering interpretations of state law where controlling precedent is scarce.”
Noonan v. Staples, Inc.,
persons owe a duty of care only to those who are foreseeably endangered by their conduct and only with respect to those risks or hazards whose likelihood made the conduct unreasonably dangerous. ... Not every risk that might be foreseen gives rise to a duty to avoid a course of conduct; a duty arises because the likelihood and magnitude of the risk perceived is such that the conduct is unreasonably dangerous.
Manchenton v. Auto Leasing Corp.,
New Hampshire courts have applied these principles in the context of landowners of recreational sports facilities that, though not directly applicable, provide guidance on what to consider in determining the scope of defendant campground’s duty to protect plaintiff campers from severe storms. In the context of recreational sports activities, the duty owed depends on: the nature of the sport involved; the type of contest; the ages,
As experienced campers, plaintiffs certainly understood that an inherent risk of camping in the woods, arguably an attractive reason for going camping, was subjecting themselves to the forces of nature, including specifically the smell, sound and feeling of wind and rain in the trees. Accordingly, for their negligence claim to survive, defendant’s conduct must be found to have unreasonably created a risk that was “totally outside” what plaintiffs would have expected when they chose to go camping. See id;
see also Werne,
First, the landowner’s duty of care is premised on the idea that as the owner and occupier of the property, he is in a position of superior knowledge about its condition.
See Prosser & Keeton,
§ 61 at 425-26 (requiring the landowner to know of hidden dangers and take reasonable precautions to protect the invitee from dangers that are foreseeable from the use of the property);
see also Cable,
[I]n the usual case, there is no obligation to protect the invitee against dangers which are known to him, or which are so obvious and apparent to him that he may reasonably be expected to discover them. Against such conditions it maynormally be expected that the visitor will protect himself.
Id. (quoting Prosser & Keaton, (3rd ed.) § 403). While the actual storm which caused the plaintiffs’ injuries was not obvious to either defendant or plaintiffs here because of its sudden emergence, the likelihood of being caught in a summer thunderstorm while camping was a danger as apparent and obvious to plaintiffs as it was to defendant.
Second, unless voluntarily assumed as in the golf course cases cited above, there is no duty to monitor weather because “[forecasts ... do not, by themselves, constitute actual or constructive notice of dangerous conditions requiring a property owner to begin taking steps either to prevent or to remove [the hazards that might follow].”
Bowman,
Both the inherent unreliability of weather forecasts and the fact that weather changes constantly justify not imposing on defendant a greater duty to monitor the weather than can be expected of plaintiffs. See id. (citing cases).
In general, changes in the weather are a part of everyday life, and citizens can be expected to adjust to them without demanding extraordinary efforts on the part of others. Furthermore, as appellee points out, weather predictions are often wrong, and may vary depending on the identity of the forecaster.... [Weather] reports are competent to prove weather conditions in the locality but, standing alone, they cannot establish the required notice to the [defendant] of the existence of a particular obstruction ... its duration, or its dangerous character.
Id. (quotations omitted). Defendant’s duty of care is limited .to keeping his property reasonably safe from known risks of danger. Because monitoring the weather would not necessarily provide defendant with either constructive or actual notice of a dangerous condition on his property, there is no basis to impose a duty to monitor the weather as part of the duty to keep the property safe. The injury that occurred here is simply too attenuated to be a foreseeable risk of defendant’s failing to monitor the weather.
In fact here, the weather forecasts plaintiffs cite as those defendant had a duty to monitor would not have provided the information needed in enough time for defendant to have taken precautionary steps to protect plaintiffs. The weather alerts numbered 1-6 in the fact statement could not give rise to any duty to warn plaintiffs at their 8:00 p.m. check-in, because the time at which the alert indicated that the threat would end had already passed. Alert number 7 was a warning for the Maine coast, not for southern New Hampshire. Alert 10 was issued after the storm had passed over the campground. The only possible relevant alerts, then, are
Finally, the factors to be considered when determining whether a duty should be imposed weigh against creating the duty plaintiffs request here.
See Hungerford,
“To impose a constant monitoring duty on [defendant] would be unreasonable and unrealistic.”
McGaskey,
Without a duty to monitor, the derivative duties of warning and evacuating the campground do not follow. “Absent a duty, there is no negligence.”
Walls,
Conclusion
Defendant’s motion for summary judgment (document no. 10) is granted. Plaintiffs’ cross-motion (document no. 12) is denied.
SO ORDERED.
Notes
. The complaint erroneously alleges the date as August 21st.
. Neither side provided any information about any warnings to WOKQ or WMUR, the stations defendant's employees listened to and watched.
. Since this action was brought under the court's diversity jurisdiction, New Hampshire law governs.
See Hernandez v. Philip Morris USA, Inc.,
. The memoranda of law in support of plaintiffs' Cross Motion for Summary and their Objection to Defendant’s Motion for Summary Judgment are identical and will be referred to hereinafter as "Pis.’ Mem. in Support." Cf. Document nos. 15.1 and 16.1.
. Assuming, as plaintiffs apparently do, that the two advisories actually aired on radio and television receivable at the campground, there is no evidence of how long after the alert they were on the air.